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Tuesday, March 24, 2015

For the purpose of just and proper punishment, not only the accused must be made to realize that the crime was committed by him, but there should be proportionality between the offence committed and the penalty imposed. It is obligatory on the part of the Court to keep in mind the impact of the offence on the society, and its ramifications including the repercussion on the victim.

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1424 OF 2009


      Sanjiv Kumar @ Gora                          ... Appellant


                                   Versus


      State of Punjab                                    ... Respondent


                                   WITH
                  CRIMINAL APPEAL NO.............OF 2015
            Arising out of SLP(Crl) No......Crl.M.P.No. 7170 OF 2007)






                               J U D G M E N T


      Prafulla C. Pant, J.


            These appeals are directed  against  judgment  and  order  dated
      8.11.2006 passed by the High Court of Punjab and Haryana  in  Criminal
      Appeal No. 1746-SB/2005 whereby the appeal of Sanjiv Kumar @ Gora  has
      been dismissed, thereby  affirming  conviction  recorded  by  Sessions
      Judge, Kapurthala in  Sessions Case No. 18 of 2003 under Sections 395,
      450 and 342 of the Indian Penal Code (IPC). However, the sentence  has
      been reduced by the High Court from 10 years imprisonment to  3  years
      imprisonment with enhancement in the quantum of fine  from  Rs.2,000/-
      to Rs.1,00,000/- under Section 395 IPC, and  from  imprisonment  of  7
      years to imprisonment  of  3  years  with  enhancement  of  fine  from
      Rs.1000/-to Rs. 20,000/-under Section 450 IPC, without interfering  in
      the quantum of sentence awarded by  the  trial  court  in  respect  of
      offence punishable under Section 342 IPC.


   2. We have heard learned counsel for the parties and perused  the  papers
      on record.


   3. Prosecution story, in brief, is that appellant Sanjiv Kumar @ Gora was
      posted as Assistant Sub Inspector at Police  Station,  City  Phagwara.
      On 23.02.2002 at about 7.30 p.m., he along with some others  committed
      trespass in  the  premises  of  M/s.  Wadhawan  Forex  (P)  Ltd.,  and
      committed robbery of Indian  Currency  of  Rs.6,64,576/-  and  foreign
      currency of value of Rs.13,44,500/-.  PW-1 Sukhraj Singh (complainant)
      was wrongfully confined, showing recovery of Rs.10,09,076/- of  Indian
      and Foreign  exchange  recovered  from  him,  and  FIR  No.  19  dated
      23.02.2002 was lodged against him relating to offence punishable under
      Sections 411 and 414 IPC and under Section 3(B) and  3(C)  of  Foreign
      Exchange Management Act at the police station.  On investigation,  the
      said case filed against PW 1 Sukhraj Singh, Director of M/s.  Wadhawan
      Forex (P) Ltd., was found to be false,  and  the  FIR  was  cancelled.
      Complainant  (PW1)  Sukhraj  Singh  lodged  a  complaint  with  Deputy
      Inspector General of Police  (Internal  Vigilance  Cell),  Chandigarh,
      alleging as to the manner robbery was committed from premises  of  the
      above firm,  and  the  amount  of  Indian  and  foreign  currency,  as
      mentioned above, was taken away even though the  aforesaid  firm  M/s.
      Wadhawan Forex (P) Ltd. had a licence from Reserve Bank of India valid
      up to 28.05.2002 for sale and purchase of foreign  currency.   On  the
      complaint of PW 1 Sukhraj Singh, enquiry was conducted, and thereafter
      First  Information  Report  No.  147  (Ex.PB/1)  was   registered   on
      10.10.2002 against the appellant Sanjiv Kumar and he was  arrested  on
      22.02.2003.  After investigation, sanction (Ex.PF) for prosecution was
      sought and chargesheet was filed against him in  respect  of  offences
      punishable under Sections 450,395 and 342 IPC.


   4. It appears that necessary copies were given to  the  accused  and  the
      case was committed by the Magistrate to  the  Court  of  Sessions  for
      trial.  The trial court, after hearing the parties, framed  charge  of
      offences punishable under  Sections  450,  395  and  342  IPC  against
      accused Sanjiv Kumar, to which he pleaded not guilty and claimed to be
      tried.


   5. On this, prosecution got examined,  PW-1 Sukhraj Singh  (Complainant),
      PW-2 Satwant Singh (neighbouring shopkeeper), PW-3 Gurdayal Singh, who
      proved sanction of  prosecution,  PW-4  Rajinder  Singh,  PW-5  Kartar
      Singh, PW-6 Gurwinder Singh, PW-7  Darshan  Lal  (Accountant  of  M/s.
      Wadhawan Forex (P) Ltd.), PW-8 Surinder Singh Atwal,   (Superintendent
      of Police, who enquired into the matter on the  complaint  of  Sukhraj
      Singh), and PW-9 S.I. Amrik Singh (who inspected the crime).
   6. In reply to oral and documentary evidence put to him under Section 313
      Cr.P.C,  accused Sanjiv Kumar pleaded that he acted under instructions
      of Station House Officer Inspector Gurmej Singh. He  pleaded  that  at
      'naka'  on  Hoshiyarpur  Road,  Phagwara,  the  team  of  Police   men
      intercepted a  Maruti Car from which Indian and foreign  currency  was
      recovered, on the basis of which FIR No. 19 dated 23.2.2002 was lodged
      against Sukhraj Singh, who was arrested for said  offence.   Appellant
      Sanjiv Kumar also took the plea that Additional  Director  General  of
      Police, Punjab, was inimical against him.  In defence, the accused got
      examined DW-1 Inspector Gurmej Singh, DW-2  SSP  Arun  Pal,  and  DW-3
      Reader Jaswant Singh.


   7. The trial court, after hearing the parties,  came  to  the  conclusion
      that the First Information Report No. 19 dated  23.02.2002  which  was
      got lodged, in respect of offences punishable under Sections  411  and
      414 I.P.C and Section 3(B) and 3(C)  of  Foreign  Exchange  Management
      Act, against Sukhraj Singh, at the instance of  the  appellant  Sanjiv
      Kumar,  was  false.   The  trial  court  believed  the  statement   of
      prosecution witnesses and found that the  offence  for  which  accused
      Sanjiv Kumar was charged, stood proved.  Accordingly, he was convicted
      and sentenced vide judgment and order dated 8.2.2005/11.2.2005  passed
      in sessions case no. 18 of 2003.


   8. Aggrieved by said judgment, the convict preferred Criminal Appeal  no.
      1746-SB of 2005 before the High Court. The High Court,  after  hearing
      the parties, affirmed the conviction of appellant Sanjiv  Kumar  under
      Sections 395, 450 and 342 IPC.  However, the sentence was  reduced  by
      the High Court, as mentioned earlier.  Hence,  this  appeal  (Criminal
      Appeal No. 1424 of 2009) through special leave.


   9. Also, Sukhraj Singh (complainant) has filed connected criminal  appeal
      for enhancement of the sentence awarded by the High Court.


  10. On behalf of the appellant Sanjiv Kumar, it is argued before  us  that
      Inspector Gurmej Singh, who actually lodged First  Information  Report
      No. 19 dated 23.2.2002  against  Sukhraj  Singh  (PW1)  has  not  been
      punished. It is contended that the appellant  Sanjiv  Kumar  has  been
      made scape goat. In this connection, our attention  is  drawn  to  the
      fact that vide order dated 28.4.2009 in Criminal  Appeal  No.  992  of
      2009 (arising out of SLP (Crl) No. 6705 of 2006 Gurmej Singh vs. State
      of Punjab & Anr), this Court has already granted  relief  to  him,  as
      such the conviction recorded  against  the  present  appellant  Sanjiv
      Kumar cannot be sustained.


  11. We have carefully gone through the order passed in Criminal Appeal No.
      992 of 2009.  What has been held in  said  appeal,   filed  by  Gurmej
      Singh,  is that the High Court erred  in  law  in  issuing  directions
      while hearing the appeal of  appellant Sanjiv  Kumar,  pending  before
      it, qua Gurmej  Singh,  without  adhering  to  principles  of  natural
      justice.  We think it relevant to mention here that Gurmej  Singh  was
      not the  co-accused  in  the  trial,  nor  this  Court  has  made  any
      observation as to innocence of present  appellant  Sanjiv  Kumar.   As
      such, the decision given in Criminal Appeal No.  992  of  2009  is  of
      little help to the present appellant Sanjiv Kumar before us.


  12. Both the Courts below, after discussing the  prosecution  evidence  as
      well as defence evidence have come to the categorical finding that  PW
      1 Sukhraj Singh was wrongfully arrested after the Indian  and  foreign
      currency was robbed by the appellant Sanjiv Kumar, who came with  fire
      arm in the shop and premises of  M/s. Wadhawan Forex (P) Ltd., and out
      of the robbed sum, part of it was falsely shown recovered from Sukhraj
      Singh by 'naka' party of police officers.  The case registered against
      Sukhraj Singh was found false after the  senior  police  officer,  who
      held enquiry on the complaint of PW-1 Sukhraj Singh.  It  is  relevant
      to mention here that after investigation, no charge  sheet  was  filed
      against  complainant  Sukhraj  Singh  (PW-1).   We  have  perused  the
      evidence  of  prosecution  witnesses,  which  include  that   of   the
      neighbouring shopkeepers, in the light of the report dated 8.7.2002 of
      Sub Divisional Judicial Magistrate, Phagwara (copy of which is annexed
      as annexure P-5) to the appeal filed by Sanjiv Kumar.   We  have  also
      considered the fact that the foreign currency consisting  Euros  1850,
      Pounds U.K. 150, Canadian Dollars 500, Australian Dollars 500 and U.S.
      Dollars 895 shown to have  been  recovered  from  Sukhraj  Singh  were
      actually validly held by him with other currencies as he had  a  valid
      licence, to deal with foreign exchange,  issued  by  Reserve  Bank  of
      India.
  13. Having re-assessed the entire evidence on record, we do not  find  any
      illegality committed by the trial  court  in  convicting  the  accused
      Sanjiv Kumar under Sections 395, 450 and 342  IPC,  which  is  rightly
      affirmed, with modification of sentence, by the High Court.


  14. Next,  learned  counsel  for  the  appellant  Sanjiv  Kumar  drew  our
      attention to the case  of C. Muniappan and others vs. State  of  Tamil
      Nadu[1] and it is submitted that since more than 10 years have  passed
      after the incident as such the sentence against the  appellant  should
      be further reduced to the period already  undergone.   However,  above
      submission is vehemently  opposed  by  the  learned  counsel  for  the
      complainant, who relied upon the principle of law laid  down  by  this
      Court in the case of Shyam Narain vs. State (NCT of Delhi)[2].
  15. We have considered the rival submissions of the parties, and we are of
      the view that sentencing for any offence has a social goal.   In  each
      case, facts and circumstances of that case are always required  to  be
      taken  into  consideration.   For  the  purpose  of  just  and  proper
      punishment, not only the accused must be  made  to  realize  that  the
      crime was committed  by  him,  but  there  should  be  proportionality
      between  the  offence  committed  and  the  penalty  imposed.   It  is
      obligatory on the part of the Court to keep in mind the impact of  the
      offence  on  the  society,  and  its   ramifications   including   the
      repercussion on the victim.


  16. Therefore, for the reasons, as discussed above, we are not inclined to
      interfere  with  the  impugned  order  passed  by  the   High   Court.
      Accordingly, both the appeals are dismissed.


                                    ......................................J.
                                                 [Dipak Misra]


                                    ......................................J.
                                                          [Prafulla C. Pant]
      New Delhi;
      March 19, 2015.
-----------------------
[1] (2010) 9 SCC 567
[2]  (2013) 7 SCC 77


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